*291On Petition eor Rehearing.
Mr. Justice Beandelivered the opinion.
It is now insisted that the court was in error in assuming that there was no evidence of negligence in the operation of the engine, although at the hearing such was practically conceded to be the fact. The only question in the case was, whether the complaint charged negligence in not exercising due care and caution in caring for the fire after it had been taken from the engine and placed upon the ground, so that whatever was said in the opinion about negligence in the operation of the engine was in accordance with the theory upon which the case was submitted, and, if a mistake, could not in any way affect the result. Counsel in their petition for a rehearing expressly agree with the court in its construction of the complaint, and, this being so, it necessarily follows that the judgment of reversal must stand, because the plaintiff was permitted to recover upon a ground of liability not alleged.
It is also requested that the cause be remanded with permission to the plaintiff to amend his complaint. The practice in such cases, when a cause is remanded, as in this case, “ for such further proceedings as may be proper not inconsistent with the opinion,” is indicated in Powell v. Dayton etc. R. R. Co., 14 Or. 22 (12 Pac. 83), and State ex rel. v. Metschan, 32 Or. 372 (53 Pac. 1071).
Rehearing denied.